Drunk driving laws favor defendant

By Yang Chia-ling 楊佳陵 /

Sun, Jun 30, 2013 - Page 8

The government has finally started enforcing drunk driving laws. However, some believe requiring drivers who refuse a Breathalyzer test to submit a blood sample is a violation of their human rights. Yet the US has long clamped down on the crime and has much legal experience in dealing with it. The practice adopted in Taiwan, of requiring prosecutors’ permission before a blood sample can be forcibly obtained, exceeds the US in terms of human rights guarantees, but falls short in terms of safeguarding pedestrian safety.

The US is organized on a federal legal system and despite major differences in the laws of each state, all 50 states use implied-consent law when dealing with drivers who refuse a Breathalyzer test. Police officers are invested with the power to take a blood sample as evidence from anyone once they refuse a Breathalyzer test, or do not cooperate in performing actions to show how physically coordinated they are. This legislation not only provides strict laws that reduce injury and death from drunk driving, it also establishes an important legal principle: Driving is a privilege, not a right.

With great privileges come even greater responsibilities. Therefore, by applying for a driver’s license, applicants have implicitly consented to cooperate with police by testing for blood alcohol levels if, based upon trace evidence, there is substantial cause to suspect them to be a threat to public safety. If the driver refuses to cooperate, or the police are unable to infer their intent either way, then the driver is understood to have consented to providing a blood sample.

Then there is the issue of whether it is right to require the police to first obtain a warrant from a prosecutor or judge before they can demand a blood test. In 1966, the US Supreme Court said that if the drunk driving has resulted in death or injury, then the driver could be sent for a blood test without a warrant. In April, the US Supreme Court issued a decision in an individual case wherein police had obtained a blood test from a driver involved in a victimless drunk driving accident against their will, without first having obtained a warrant.

In principle, it said, the police must obtain the writ first. However, in exceptional circumstances, such as when it is impracticable to do so — for example, when communication channels are down, making it impossible to contact a prosecutor or judge — the police can, to avoid losing evidence, require the driver to provide the blood sample without the writ.

Empirical research has shown that, through metabolism, the blood alcohol concentration (BAC) falls at a rate of 0.015 every half hour, on average. In the first instance in Taiwan of a drunk driver refusing a Breathalyzer test, it took police at least four hours to secure permission to get the blood sample. By then, the BAC would have fallen by 0.06 points, rendering the evidence useless.

It is very worrying that Taiwanese police do not have the power to require a driver to undergo a blood test. In future, in enforcing the law, the question is whether police will be able to obtain a warrant to preserve the integrity of the evidence in time.

It is not the first time anyone has found the judiciary or the nation’s laws or their enforcement exasperating: Drunk driving laws are unjust and biased in favor of the rights of the defendant rather than that of the victims and law-abiding citizens. The amount of fatalities and injuries resulting from drunk driving, the loss of the BAC evidence and the fact that driving is seen as a basic human right, rather than a privilege, lead me to question: Could they better reflect social changes and social needs?

Yang Chia-ling is a lawyer and doctoral candidate at the University of California School of Law.